The Rules of Actusreaus and Mens Rea in International Criminal Law Ought to the Support Victims of Human Rights Violations Through Liability of Combatants

Abstract

The normative principles of criminal law were in some cases founded upon concepts of individual criminal responsibility for a person’s unlawful conduct. However under international criminal law the challenges of individual criminal responsibility may tend to arise from the effects of the hierarchal based-leadership structures that are used in the military. The hierarchal based structures are operationalised through a line of command which enhances maximum obedience to the instructions issued by military leaders. Disciplinary actions could be used under the military codes of practice to encourage compliance with the line of command. Possibly the line of command might be contributing to some cases of human rights violations. The problems that the line of command might create to individual criminal responsibility are dealt with under this article. Cases where the members of armed forces are instructed by their superiors to act upon the instructions that are inconsistent with norms of human rights protection are taken into account by this paper. The paper considers that in other cases those instructions have turned out as misleading, misguiding or founded upon misconceived facts that may result into war crimes or crimes against humanity. This article examines how the principles of private criminal law have contributed in responding to the challenges of international criminal law. The article also examines if these developments have reshaped the ways of pursuing post conflict justice for the violations of human rights.